Articles Posted inConsequences

There comes a time in everyone’s life when you must admit that you are defeated. In the context of a police encounter it is important to know when that moment comes, and what to do. In order to illustrate when, and why it becomes necessary to admit possession, a hypothetical example will be given illustrating the consequences of failing to admit defeat. It is rarely advisable to admit knowingly possessing controlled substances, alcohol, or weapons. However, there are times where it is advisable to admit such possession to a police officers.

The Situation

Donald is driving his car down the highway, when he is pulled over by a police officer for a broken taillight. Donald is nervous as he is in possession of half an ounce of marijuana and he knows his car smells like it. Fearing the worst, Donald stuffs the marijuana in his underwear hoping to hide it if the officer searches the car. The officer approaches the window and ask Donald for his License, and proof of insurance, the officer immediately smells the marijuana and now has probable cause to search the vehicle[1] without a warrant pursuant to “The Auto Exception” doctrine set forth in Carrol[2]. The officer then asks Donald if he has anything illegal in the car. Donald says no. The officer then asks Donald for consent to search the car, Donald says no. The police officer then asks Donald to step out of the car, places him in handcuffs, pats him down. During the pat down the officer misses the marijuana Donald has stashed on his person. The officer then leads Donald to the back of the patrol car and tells him he will begin to search his car for marijuana. Donald protest, but knows in his mind the officer will not find anything as he has hidden it on his person. The officer proceeds to search Donald’s car for marijuana, and ultimately finds a bit of marijuana on the floor of the vehicle that Donald had missed. Evidence secured, the officer returns to Donald and tells him he will be arrested for possession of marijuana[3]. Donald his distraught as he believed he had gotten all of it. The officer then asks Donald if he has any marijuana on him. Donald says no, believing the charge will get worse if he turns over the rest of the marijuana.

The consequences of a conviction have both short and long term collateral consequences for those arrested depending on the nature of the crime, the age at which the crime occurred, and whether it is a repeat offense. The long-term repercussions of a conviction, or guilty plea are difficult to foresee, and underscore the need for experienced and zealous legal representation, as well as a basic understanding of your rights.

The Short Term Legal Repercussions of a Conviction

The short-term repercussions of a conviction vary depending upon the age at which the offense was committed, whether the crime is a repeat offense, and the nature of the crime committed. The short-term repercussions result from operation of state and federal statutes, and vary in length.

In 1971, officers arrested Ronald Kelly, a high school student at the time, for possession of a small bag of marijuana. Kelly received a misdemeanor conviction and was punished by one year of probation. Shortly after, Kelly served in the U.S. Army for 20 years where he gained more experience in properly handling firearms than most lawful gun owners possess. Despite his expertise in firearms and extended service to his country, Kelly was recently denied approval for a .22 caliber rifle at a Texas Wal-Mart due to his prior marijuana conviction.

The FBI’s National Instant Criminal Background Check System can prevent an adult from owning a gun if that adult was convicted of a crime, even a misdemeanor, which could have subjected the person to more than two years imprisonment. Since Kelly’s marijuana conviction could have technically landed him in jail for more than two years, even though it did not, the FBI may refuse the veteran’s firearm application. Many Texans wishing to exercise their second amendment right to bear arms seemingly face this issue since Texas is among the top states that file the most firearm applications. Further, federal law prohibits people who simply use marijuana, a substance that is not prone to make people violent, from possessing firearms and ammunition. This federal prohibition applies even if the state where the applicant resides has legalized, medicalized, or decriminalized the substance. Applicants are asked on firearm applications if they are unlawful users of a controlled substance and, if the applicant answers falsely, he could face felony charges.

A rejected firearm applicant could legally challenge his denial and petition for his right to bear arms. However, even if the government’s denial lacks an adequate basis, like an actual record of the applicant’s marijuana conviction, the burden is on the applicant to produce the evidence to argue against the FBI’s rejection. Once the FBI denies a firearm application for a prior conviction, the government does not have to produce the records of the conviction to show the denial was justified.

Under federal law, a marijuana conviction would automatically bar a student from receiving federal student loans, grants and work assistance. President Barack Obama, along with numerous United States presidents, has admitted using marijuana for recreational purposes. He has also stated that he took advantage of student loans to fund his education which was crucial to his ascension to the presidency. As a younger individual, the president was fortunate enough not to be caught with the substance. However, like millions of Americans, if the president was caught and convicted for possession of a drug classified as a controlled substance, under current law he would have likely lost his eligibility to receive student loans. Such a loss may have stifled his opportunity to receive a Harvard education and would have been detrimental to becoming a United States President. One cannot help but wonder how many Americans, who did not have the good fortune to elude prosecution and conviction, have been deprived of their opportunity to receive a highly beneficial education.
An exceptional opportunity has presented itself to correct this flawed policy of punishing individuals for the use of a substance that is less destructive than alcohol or tobacco. With 18 states and the District of Colombia having legalized marijuana for medicinal purposes, 14 states having decriminalized non-medical marijuana in small amounts, and two states having legalized recreational marijuana, the momentum to stimulate substantial drug law reform is nearly unstoppable. Support for change in marijuana policy has also arisen from the medical community as highlighted by the American Medical Association which has called for rescheduling marijuana as a non-Schedule I drug. Further strengthening the push to rethink marijuana use illegality is public opinion in favor of legalization, which according to a Rasmussen Poll has reached 56% in favor of regulation of the substance. Prominent members of the legal community, such as the prolific Judge Richard Posner, have also voiced their support for legalization of the substance. Acclaimed civil rights organizations such as the NAACP and the ACLU have advocated for marijuana decriminalization to help combat racially disproportionate punishment for illegal drug possession. Social and political conservatism has had a modest but noticeable history of supporting marijuana reform as shown by thinkers like William F. Buckley and Barry Goldwater. On almost a regular basis, more contemporary social and political conservatives are coming out in favor of marijuana legalization, such as Pat Robertson and Tom Tancredo.
Recently, Barbara Walters asked the president whether he thinks marijuana should be legalized. His response was that, though he would not go as far as to favor legalization, he does recognize that the voters in Washington and Colorado have spoken on this issue. Moreover, the president noted how nonsensical it would be for the federal government to prosecute individuals in states where the substance is legal. By implying a federal allowance, or at least tolerance, for states that have legalized marijuana, the president has sparked hope in the minds of many proponents of drug law reform that desire a true change in federal policy. Perhaps as a result of reformed federal drug policy, students who have been caught with the substance, which the president once used, will be not be deprived of their opportunity to attain the academic and professional highs that come with an education.Continue reading